Tuesday, February 2, 2010

It's economic interdependence, not marriage, that should afford benefits to partner of deceased state trooper

Missouri highway patrol officer Dennis Engelhard died in the line of duty on Christmas day. His surviving partner of 15 years, Kelly Glossip, is not entitled to a lifetime benefit of $28,000 a year. That benefit is reserved for spouses (and children). Defenders of the system point out that unmarried different-sex partners also do not get the benefit. I discuss many examples like this in my 2008 book and it's a perfect opportunity to illustrate the valuing-all-families methodology I advocate. Simply put, any law should include within its purview the relationships that are consistent with the purpose of the law.

The Missouri survivor's pension system no doubt dates to a time when married women were economically dependent upon their husbands (and from a time when women could not serve as highway patrol officers, I would guess.) The system's purpose is compensation for that dependency, given that the wage-earner has died serving the public interest. Why else would it exist? Well today there is no longer such a clear fit between marriage and economic dependency. The pension should go to a person who was financially dependent upon, or interdependent with, the deceased. Married or not.

Right now, there are state workers compensation systems that work this way. (The benefit is not as large, but it's a benefit that goes to the survivor of any worker who dies on the job; the size of the highway patrol officer's benefit recognizes the risk faced by public safety officers). Had the September 11th attacks occurred in Los Angeles, for example, surviving same-sex partners would have received the same workers comp survivors benefits available to spouses, because California looks to economic interdependency, not marriage, in awarding those benefits.

What's the purpose of the federal benefit? It appears to be public recognition of the value of a deceased public safety officer -- a way of valuing and honoring his or her work. Mychal Judge himself died without a spouse, parents, or children, and so no one was eligible to receive the federal benefit in existence up until that time. It was to remedy that wrong that Congress amended the law to allow the officer to designate a beneficiary. (Judge's benefit went to his sisters, whom he had designated as the beneficiaries of his life insurance policy.) Congress might have decided that compensation for the loss of an economic provider was the purpose of the benefit. If it had, then Judge's death would have created no benefit, since no one depended upon him. So Congress actually choose a different basis -- a kind of a parting gift to the estate of the fallen officer. Since each of us gets to decide where our assets go when we die, then it makes sense to allow an officer to select a beneficiary.

Gay rights groups might use Engelhard and Glossip as yet another reason why same-sex couples must be allowed to marry. I use it to illustrate that marriage is the wrong dividing line between who gets a survivors benefit and who doesn't.

No comments:

About Me

I have been working on gay and lesbian family law issues for more than 35 years. I teach at American University Washington College of Law, but for the 2011-2012 academic year and the Fall Semester 2012 I was the McDonald/Wright Chair of Law at UCLA. I have published many law review articles and book chapters. BEYOND (STRAIGHT AND GAY) MARRIAGE is my first book.